Enhancing NJ SFAA with Local Laws

Local smokefree air legislation is specifically authorized by the New Jersey Smoke-Free Air Act:

where smoking is prohibited by municipal ordinance under authority of R.S.40:48-1 or 40:48:2, or by any other statute or regulation adopted pursuant to law for purposes of protecting life and property from fire or protecting public health, and … those provisions of a municipal ordinance which provide restrictions on or prohibitions against smoking equivalent to, or greater than, those provided under this act. (N.J.S. 26:3D-63)

The authority referred to, R.S. 40:48-1 and 2, are the statutes that give general authority and regulatory powers to municipalities to enact and enforce ordinances, regulations, and rules deemed necessary and proper for the preservation of the public health, safety, and welfare of the municipality and its inhabitants, and the authority to regulate the use of combustible materials and to provide for the protection of life and property from fire and other dangers. NJSA 26:3A2-21 et.seq., in particular NJSA 26:3A2-27 gives authority to local and county governing agencies to enact environmental health ordinances including protecting citizens from secondhand smoke.

Furthermore, New Jersey has a strong home rule tradition embodied in its Constitution, in legislation, and in litigation. See New Jersey Constitution, Article IV, Section 7, paragraph 11; N.J.S.A. 40:42-3, N.J.S.A. 40:42-4, N.J.S.A. 40:48-1 and 2; Chester v. Panicucci, 62 N.J. 94, 102 (1972); CIC corp. v. East Brunswick, 266 N.J. Super. 1 (App. Div.) (1973).

Contact our office (908) 273-9368 for model local ordinances.

New Jersey local governments can consider:

1. Prohibitions on smoking in places not covered by the NJ SFAA
2. Enhanced enforcement procedures for smokefree air provisions
3. Stronger penalties (for instance, suspension and revocation of local licenses)
4. Outdoor smokefree air ordinances
5. Protections from secondhand smoke in housing, especially multi-unit housing
6. Declaring secondhand smoke a nuisance.

Other local tobacco-control measures might include tobacco retailer licensing, regulating new and “fad” tobacco products, prohibiting tobacco sponsorship of events and the distribution of free tobacco samples, and making private enforcement of laws against tobacco sales to minors possible in small claims court.

Here’s more specific information on the possibilities above:

1. Prohibitions on smoking in places not covered by the NJ SFAA

Local governments can consider prohibiting smoking in cigar bars, in all hotel rooms or a larger portion of hotel rooms than specified by the NJ SFAA, even on casino gaming floors.

2. Enhanced enforcement procedures for smokefree air provisions

Local governments could require that signs, which are required by the NJ SFAA, also must include contact information for the local enforcement agency. Local governments could also specifically designate police departments as enforcement agencies.

3. Stronger penalties

Local governments could set higher fines and could include suspension and revocation of local licenses (such as retail food licenses) for violations.

4. Outdoor smokefree air ordinances

Smokefree outdoor ordinances for government property and public places help protect nonsmokers and give everyone, especially children, a strong message that nonsmoking is standard. New Jersey municipalities have led the nation in these ordinances. Outdoor smokefree ordinances could set a smokefree perimeter around indoor places required to be smokefree by the NJ SFAA and could, for instance, make patios, waiting and service lines and queues, etc., smokefree.

5. Protections from secondhand smoke in housing, especially multi-unit housing

Local governments can enact ordinances protecting residents from smoke seeping into their units from other units in multi-unit housing and could control smoking on private outdoor patios and balconies that abut nonsmoking ones or on other outdoor sites where the smoke enters residences.

6. Declaring secondhand smoke a nuisance

A local ordinance that declares nonconsenual exposure to secondhand smoke a nuisance provides more options for people who are exposed; it could eliminate the need to prove that some particular level of exposure has occurred and then to prove that such exposure is a hazard A local secondhand smoke nuisance ordinance could allow the government to impose a fine and/or require that the nuisance be eliminated.

Please note: The information presented on this website is not intended as, nor to be construed, or used, as legal advice, and should not be used to replace the advice of your legal counsel.